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October 19, 2020

Health Headlines – October 19, 2020


CMS Expands Medicare Telehealth Services List and Support for State Medicaid Telehealth – On October 14, 2020, CMS added eleven (11) new services to its Medicare telehealth list that are payable during the COVID-19 public health emergency (PHE).  This latest expansion of telehealth services is the first to use the new, expedited process that CMS established in May 2020.  CMS has also announced additional support to state Medicaid agencies to expand access to telehealth.  According to CMS, these developments are consistent with President Trump’s Executive Order on Improving Rural Health and Telehealth Access, issued on August 3, 2020.

Effective May 1, 2020, CMS’s COVID-19 Interim Final Rule with comment period (IFC) expanded Medicare coverage for eligible practitioners who furnish certain telehealth services for the duration of the PHE.  In the IFC, CMS announced revisions to its regulations that allowed it temporarily to expand its list of telehealth services reimbursable under Medicare without following the normal notice-and-comment rulemaking process.  Instead, CMS could update its telehealth services list through an expedited, sub-regulatory process. 

Under this expedited process, CMS has now added eleven (11) new services to the Medicare telehealth services list since its last May 2020 update.  CMS’s list of Medicare-reimbursable telehealth services now includes approximately 144 services.  These latest telehealth services added to the list include certain neurostimulator analysis and programming services, and cardiac and pulmonary rehabilitation services. The list of these newly added services is available here

CMS has also released a supplement to its State Medicaid and CHIP Telehealth toolkit intended to help states further implement telehealth.  According to CMS, these resources “explain and clarify to providers and other stakeholders which policies are temporary or permanent . .  . [and] helps states identify services that can be accessed through telehealth, which providers may deliver those services, the ways providers may use in order to deliver services through telehealth, as well as the circumstances under which telehealth can be reimbursed once the PHE expires.” 

These initiatives follow an August 3, 2020 Executive Order in which President Trump directed the Secretary of HHS to improve CMS’s temporary telehealth measures put in place during the PHE and even extend certain measures, as appropriate, beyond the duration of the PHE.

Reporter, Michael L. LaBattaglia,Washington, D.C., +1 202 626 5579, mlabattaglia@kslaw.com.

Trump Administration Approves Georgia’s Limited Expansion of Medicaid and Work Requirement – CMS approved Georgia’s Section 1115 demonstration project to partially expand Medicaid coverage for adults not otherwise eligible for Medicaid coverage with incomes up to 95 percent of the Federal Poverty Line (FPL)—short of the Affordable Care Act’s effective minimum threshold of 138 percent of the FPL.  Most individuals with incomes from 50 percent up to 95 percent of the FPL who choose to opt-in to this Medicaid coverage will be required to pay monthly premiums. CMS also approved an eighty-hour “qualifying activities” requirement as a condition of eligibility.  The changes were effective October 15, 2020.

Enrolled individuals who are also eligible for employer-sponsored insurance may be required to enroll in such insurance with premium and cost-sharing assistance from the State if this alternative will be cost effective to the State.  Enrollees will be provided a Member Rewards Account (MRA) to be used to deduct beneficiary copayments, reflect accrued premium payment amounts as credits, and deposit incentive points with a dollar-value equivalent for completing healthy behavior activities, such as attending smoking cessation classes and annual well visits.  Enrollees may use credits in the MRAs to access dental services, glasses, contacts and over-the-counter drugs not covered by Medicaid. 

Notably, CMS rejected Georgia’s request for an enhanced federal match for the state’s limited Medicaid expansion.  CMS clarified that it would continue its existing policy of providing the enhanced match only to states that expanded Medicaid to the ACA threshold.  Accordingly, Georgia will not receive the Affordable Care Act’s 90 percent federal match for full expansion and will instead continue to receive its existing 67 percent match.

In addition to the limited Medicaid expansion, Georgia added a qualifying activities requirement for Medicaid eligibility, with limited exceptions due to disability or other good cause reasons. The activities requirement may be satisfied by certain specified activities, including subsidized private sector employment (including self-employment), unsubsidized employment, specified job readiness activities, on-the-job training, certain community service activities, specified vocational educational training, and enrollment in an institution of higher education. The Supreme Court is expected to take up the issue of Medicaid work and activity requirements sometime soon.  King & Spalding will continue tracking this issue.

Georgia has also submitted a Section 1332 State Innovation Waiver Application for the “Georgia Access Model,” a plan to exit Healthcare.gov, the federal health insurance exchange for ACA plans. Under the waiver, Georgia would not establish a state-run clearinghouse for ACA plans.  Instead of using the federal or a state-run exchange website to purchase ACA plans, Georgians would purchase plans directly from private insurers and web brokers.

In its Section 1332 State Innovation Waiver Application, Georgia also requests a waiver to develop a state reinsurance program to attempt to stabilize the individual insurance market and reduce premiums.  This would be contingent on a waiver of the ACA requirement that all individual market enrollees be members of a single risk pool. Georgia estimates the total cost for the reinsurance program would be $398 million in 2022.  Of this $398 million, the federal government would contribute approximately $306 million via pass-through funding, and Georgia would contribute the remaining $92 million from the state general fund.   The State estimates that the waiver would decrease premiums by approximately ten percent, as compared to premiums if no waiver were in place.  The estimated premium reduction is expected to have the greatest impact for those individuals over 400% of the FPL, who are not eligible for federal subsidies for premiums.

If approved, Georgia’s plans to exit the federal exchange and implement a reinsurance program would be in effect from 2022 through 2026.  Last Thursday, Seema Verma, the CMS Administrator, announced that approval of the Section 1332 Waiver would be officially announced in a few days.  King & Spalding will continue tracking this issue as well.

A copy of the Section 1115 demonstration project approval is available here. Georgia’s Section 1332 State Innovation Waiver Application, as submitted to CMS on July 31, 2020, is available here.

Reporter, Rebecca Gittelson , Atlanta, +1 404 572 4679, rgittelson@kslaw.com.  

ALSO IN THE NEWS

CMS Changes Medicare Payment to Support Faster COVID-19 Diagnostic Testing – CMS announced that as of January 1, 2021, Medicare will pay $100 to laboratories that complete high throughput COVID-19 diagnostic tests within two calendar days of the specimen being collected. Medicare will pay $75 to laboratories that take longer than two days to complete these tests. CMS’s goal is to ensure that patients who test positive for the virus are alerted quickly so they can self-isolate and receive medical treatment.

Law360 Recognizes Jim Boswell and Nikki Reeves as 2020 MVPs – Law360 has named King & Spalding partners Jim Boswell and Nikki Reeves to its list of 2020 MVPs.  Jim Boswell, recognized as a Health Care MVP, is the Team Leader of the firm’s national Healthcare Team. Nikki Reeves, recognized as a Compliance MVP, is a partner in the FDA & Life Sciences practice and co-chairs the firm’s Life Sciences and Healthcare Industry Group, which is comprised of more than 350 lawyers across fifteen practice areas. The Law360 MVPs list recognizes lawyers who “have distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters and record-breaking deals,” according to the publication.